13.  The applicant was born in 1962 and lives in Switzerland.
14.  In 1996 and 1997 negotiations were conducted between, among others, the World Jewish Congress and Swiss banks concerning compensation due to Holocaust victims for unclaimed assets deposited in Swiss bank accounts.
15.  Against that background Carlo Jagmetti, who was the Swiss ambassador to the United States at the time, drew up on 19 December 1996 a “strategy paper”, classified as “confidential”, which was faxed to Thomas Borer, head of the task force that had been set up to deal with the matter within the Federal Department of Foreign Affairs in Berne. Copies were sent to nineteen other individuals in the Swiss government and the federal authorities and to the Swiss diplomatic missions in Tel Aviv, New York, London, Paris and Bonn.
16.  Below are some extracts from the document, based on the article “That’s all we need”, which appeared in the Tages-Anzeiger on 27 January 1997, the day after the applicant’s articles were published (unofficial translation):
“Ambassador,
The campaign against Switzerland and the huge claims accompanying it, reflected in the activities of the Jewish organisations, the statements of American politicians and the class actions, will greatly occupy the authorities and public opinion on both sides of the Atlantic for some time to come ... However, the real reverberations will not be felt until the inquiries which are to be launched have been completed, those claims that are well-founded have been met, the proceedings have been concluded and matters have been put right in historical, political, legal and moral terms. That will take at least three years, possibly much longer. Moreover, it is impossible to predict today the course of Swiss domestic and foreign policy in the years ahead. In any event, the political, economic and social challenges facing the country internally and the uncertainty surrounding the European issue (the EU, security, etc.) and globalisation are already prompting some painful soul-searching by the Swiss people.
The comments now coming from America are all we need. Suddenly, on top of the present and future uncertainties, we must come to terms with the past. The campaign against Switzerland, therefore, is being conducted in an already difficult climate ...
All Switzerland’s efforts are aimed at preserving the country’s integrity, forestalling or at least warding off dangers and maintaining international relations (in particular with the United States) during the crisis and beyond while avoiding any lasting damage. All interim goals must be viewed solely in relation to the main objective. Short-lived successes such as ‘truces’, temporarily positive reactions from the media, satisfaction at seeing certain projects put in hand, historical insights which may be favourable to Switzerland or constructive remarks from our negotiating partners abroad should not blind us to the long-term reality. Individual battles may be important, but ultimately it is the war that Switzerland must win ...
If we assume that the demands of the Jewish organisations and Senator D’Amato must be satisfied as a matter of urgency, and that then calm will be restored, an actual deal might be struck with the organisations concerned. Instead of just making the ‘gesture’ currently being speculated on, we could act immediately to resolve the matter by paying a lump sum in order to settle all the claims once and for all. Given that a large number of groups and countries are affected by this issue and that Switzerland is now being called to account, as it were, by the international community, the plan must have both a national and an international dimension and be based on a long-term strategy. It might look something like this:
–  the measures planned to date (publication of the expert report on the compensation agreement with the countries of eastern Europe, commencement of the work of the historical commission, inquiries by the Volcker Committee) will be effectively implemented by Switzerland using the necessary resources and within a realistic time frame, with any difficulties being overcome in a determined manner;
–  the dialogue with all the groups concerned must be continued in a correct and conciliatory manner, without making interim concessions which could jeopardise the entire process;
–  as far as the activities of foreign governments and parliaments are concerned (particularly in the United States and the United Kingdom), the aim should be to bring about courteous bilateral cooperation focusing primarily on establishing the truth and avoiding any polemics. Where necessary, of course, a clear and firm stance should be taken, particularly if Switzerland is disparaged or accused without absolutely clear‑cut reasons;
–  when significant interim findings have been obtained and, especially, when all the inquiries have been completed, negotiations will need to be conducted on the conclusions to be drawn and on how any funds released should be used. These should be conducted at governmental level, either multilaterally, if possible with all the countries concerned (including the Allies, those countries that were neutral at the time, Israel and Germany), bilaterally with Israel (which would mean giving up a long-standing position and accepting the risk of adverse reactions from the Arab world), or with non-governmental organisations. Much will depend on the strategy of our adversaries. However, the issue must be made an international one and other countries must be held to account. Switzerland, which has set a good example with its inquiries, should assume a leading role and hence seize the initiative ...
It must also be borne in mind that scenarios and strategies are not immune to outside influences and that events may occur or a new trend emerge at any time, calling everything into question or at least requiring considerable flexibility. Accordingly, a mix of action based on international law and interim payments would, if possible, be more realistic. Opting for this kind of mix from the outset would almost inevitably mean taking a pragmatic approach that evolves from day to day and scarcely deserves the ambitious description of a ‘strategy’ ... Switzerland cannot afford to just muddle through in this matter.
Whatever strategy is chosen, action will be needed on the external front to lend credibility to Swiss efforts. This can be done by taking the same – essentially reactive – stance taken hitherto or by adopting a more innovative approach. As part of the latter I would advocate campaigning systematically in political circles and in the media, maintaining ongoing contacts with the American administration in order to compare results and refine methods, cultivating relations with the Jewish organisations wherever possible in a friendly manner but without servility, and conducting a well-orchestrated public relations campaign including, for instance, seminars and round-table sessions. On the subject of public relations, however, statements should be made only if there is something new to be said and the time and place are right. Pilgrimages abroad are best avoided on tactical grounds and in view of the domestic policy aspects ...
The advantages and drawbacks of the different approaches are fairly obvious. However, it is clear that, from a historical, political and legal perspective, a ‘deal’ will never be satisfactory. Ideally, all the same, the legal strategy should be chosen. This places considerable demands on all concerned and calls for initiative, time and energy, to say nothing of the cost. In view of the main objective, however, we would be well advised to change the habit of a lifetime and make the necessary funds available without unseemly haggling. Let me repeat: this is a war Switzerland must wage and win on the external and domestic fronts. Most of our adversaries are not to be trusted. The potential damage to Switzerland from a boycott or perhaps even legislative action by other countries is immense. Even the figures for our national pension insurance scheme or the cost of the new trans-Alpine rail links, for instance, are liable to look modest by comparison. Switzerland must present a united and determined front ...
Carlo Jagmetti, Swiss Ambassador”
17.  The applicant obtained a copy. It seems clear that he could not have acquired possession of the document without a breach of official secrecy by a person whose identity remains unknown.
18.  On Sunday 26 January 1997 the Zürich Sunday newspaper, the Sonntags-Zeitung, published the following article by the applicant (unofficial translation):
“Ambassador Jagmetti insults the Jews [original title in German: Botschafter Jagmetti beleidigt die Juden]
Secret document: ‘Our adversaries are not to be trusted’ [Geheimpapier: ‘Man kann dem Gegner nicht vertrauen’]
by [the applicant]
Berne/Washington – Another scandal involving the Swiss ambassador to the United States: Carlo Jagmetti, in a confidential strategy paper on the assets of Holocaust victims, talks of the ‘war Switzerland must wage’, and of ‘adversaries’ who ‘are not to be trusted’.
The paper is classified as ‘confidential’. It was written by Carlo Jagmetti, Swiss ambassador to the United States. On 19 December the 64-year-old high-ranking diplomat in Washington sent the task force in Berne his views on what he described as a ‘campaign against Switzerland’. This report has been obtained by the Sonntags‑Zeitung, and is dynamite. In terms of its content, it is an unremarkable assessment of the situation. But the aggressive language used by Carlo Jagmetti has the effect of an electric shock on the reader. ‘It is a war,’ writes the ambassador, ‘a war Switzerland must wage and win on the external and domestic fronts.’ He describes Senator D’Amato and the Jewish organisations as ‘adversaries’, saying that ‘most of our adversaries are not to be trusted’.
In his paper, Carlo Jagmetti mentions the possibility of concluding an agreement, because ‘the demands of the Jewish organisations and Senator D’Amato must be satisfied as a matter of urgency’. He uses the word ‘deal’ in this context. Ambassador Jagmetti suggests ‘paying a lump sum’ to the Jews in order to settle ‘all the claims once and for all’. Then, he writes, ‘calm will be restored’.
Speaking of the ‘external front’, Carlo Jagmetti says that Switzerland should ‘campaign systematically in political circles and in the media’. Relations with Jewish organisations should be ‘cultivated in a friendly manner but without servility’, with the help of a firm of lawyers, and a ‘well-orchestrated public relations campaign [should be conducted], including seminars and round-table sessions’.
No comments on this strategy paper by the eminent diplomat – due to retire in the spring – were forthcoming yesterday either from Flavio Cotti [head of the Swiss diplomatic service] at the Federal Department of Foreign Affairs or from the task force headed by Thomas Borer. Carlo Jagmetti had no comment to make to this newspaper.
Martin Rosenfeld, President of the Swiss Federation of Jewish Communities (SIG/FSCI) described Carlo Jagmetti’s remarks as ‘shocking and profoundly insulting’. He said he foresaw ‘a difficult run-up to retirement’ for Mr Jagmetti.”
19.  In the same edition of the Sonntags-Zeitung of 26 January 1997, another article by the applicant read (unofficial translation):
“The ambassador in bathrobe and climbing boots puts his foot in it [Mit Bademantel und Bergschuhen in den Fettnapf]
Swiss Ambassador Carlo Jagmetti’s diplomatic blunderings [Der Schweizer Botschafter Carlo Jagmetti trampelt übers diplomatische Parkett]
by [the applicant]
Berne/Washington – Swiss Ambassador Carlo Jagmetti constantly gets himself noticed on the diplomatic scene. With his insensitive remarks on the assets of Holocaust victims, he has thrown Swiss foreign policy into turmoil – and not for the first time.
Early on Friday morning the temperature began to rise in the offices of the Swiss embassy in Washington. ‘We do not comment on internal documents’ said an embassy spokesman emphatically to this newspaper ... By the following day, nevertheless, ... [an] editor on the [daily newspaper] Neue Zürcher Zeitung had already leapt to the defence of his close friend Carlo Jagmetti. Under the heading ‘Leaks continue unabated’, he announced that ‘this balanced document, some parts of which might, of course, be mischievously construed, may be published this weekend’.
Damage limitation, therefore, was the name of the game in Washington on Friday. Ambassador Carlo Jagmetti, who has represented Switzerland abroad for 34 years, was clearly aware of the explosive nature of his strategy paper, dated 19 December 1996, on the subject of unclaimed Jewish assets. In his paper, he talks about a ‘war Switzerland must wage and win on the external and domestic fronts’. He winds up with a flourish by observing: ‘Most of our adversaries are not to be trusted.’
The Swiss embassy in Washington is, however, experienced in crisis management. Carlo Jagmetti, who heads the embassy, regularly puts his foot in it. In 1993, a few months after moving into his office in the prestigious Cathedral Avenue, this senior diplomat committed his first faux pas. In an interview with the magazine Schweizer Illustrierte, he complained about the American administration, saying ‘I’ve observed a certain lack of courtesy’. Even Bill Clinton, who was said to ‘burst out laughing sometimes at inopportune moments’, was criticised during the interview. Apparently, Mr Clinton had ‘kept [Carlo Jagmetti] waiting for four months’ before he was accredited. And, according to the ambassador, it was legitimate to ask, on a general note, ‘who [was] actually governing the United States’.
Berne reprimanded the ambassador for his ill-chosen remarks and for an unconventional public appearance (Carlo Jagmetti and his wife were pictured [in an article in Schweizer Illustrierte] in their bathrobes), but the ambassador did not prove much more reticent in his subsequent utterances. And in the highly topical debate concerning the assets of Holocaust victims, Carlo Jagmetti has also given the impression of somebody blundering onto the diplomatic stage in outsize boots. He rebuked the Holocaust survivor Gerda Beer in front of the assembled American press, saying that her claims were unfounded as her uncle had emptied the Swiss bank account in question. The incident-prone diplomat based his remarks, however, not on proven facts, but on unsubstantiated rumours which had been circulating.
Berne was left with no choice but to apologise for his undiplomatic remarks in a bid to limit the damage.
These remarks, which have now been made public, are all the more embarrassing since the tension seemed to be easing. Only last Friday Senator D’Amato and the World Jewish Congress had for the first time welcomed Switzerland’s agreement to set up a fund for Holocaust victims.
Swiss diplomats are now engaged in behind-the-scenes efforts to head off the impending crisis by stressing the fact that Carlo Jagmetti is due to retire shortly. In any event, they argue, Mr Jagmetti played only a minor role in the recently concluded negotiations between Jewish organisations and the American Senator D’Amato.
Carlo Jagmetti himself has declined to comment. He absented himself from the major press conference held by Senator D’Amato on Friday before the world’s press. He was reportedly on holiday in Florida.”
20.  A third article, which also appeared in the Sonntags-Zeitung on 26 January 1997 and was written by the editor Ueli Haldimann, was entitled “The ambassador with a bunker mentality” (“Botschafter mit Bunkermentalität”).
21.  On Monday 27 January 1997 the Zürich daily, the Tages-Anzeiger, reproduced lengthy extracts from the strategy paper in an article entitled “That’s all we need” (“Das hat gerade noch gefehlt”). Subsequently, another newspaper, the Nouveau Quotidien, also published extracts from the paper.
22.  Following publication of these articles, the Swiss Federal Council (Bundesrat) requested the Swiss Press Council (Presserat) to examine the case.
23.  The Swiss Press Council acts as a complaints body for media-related issues. It is an institution under Swiss private law set up by four associations of journalists which formed a foundation (Stiftung) to organise and fund the activities of the Press Council. According to the Press Council rules, its activities are intended to contribute to the discussion of fundamental ethical issues in relation to the media. Its task is to uphold freedom of the press and freedom of information, and it adopts opinions, on its own initiative or in response to complaints, on issues concerning journalistic ethics. The Swiss Press Council has adopted a “Declaration on the rights and responsibilities of journalists”, which is available on the Internet.
24.  Its opinion (Stellungnahme) of 4 March 1997 concerning the present case (no. 1/97, C. J./Sonntags-Zeitung) reads as follows (unofficial translation):
“II.  Considerations
... 2.  With regard to the publishing of confidential information, the following extracts from the Declaration on the rights and responsibilities of journalists are of relevance:
(a)  ’[Journalists’] responsibility to the public [shall take precedence over] their responsibility ... towards the ... authorities ... in particular’ (Preamble).
(b)  Journalists shall have free access ‘to all sources of information and [shall have the] right to investigate without hindrance any facts which are in the public interest; objections of secrecy in public or private matters may be raised only in exceptional cases, with sufficient reasons given in each case’ (point (a) of the Declaration of rights).
(c)  Journalists shall publish only ‘such information, documents [or] images whose origin is known to them; [they shall not suppress] information or essential elements [and shall not] distort any text, document, image ... or opinion expressed by another. [They shall] present unsubstantiated news items very clearly as such [and] make clear when pictures have been edited’. They shall comply with reasonable deadlines (point 3 of the Declaration of responsibilities).
(d)  Journalists shall not make use of ‘unfair methods in order to obtain information, ... images or documents’ (point 4 of the Declaration of responsibilities).
(e)  They shall respect ‘editorial secrecy and shall not reveal the sources of information obtained in confidence’ (point 6 of the Declaration of responsibilities).
(f)  They shall not accept ‘any favours or promises which might compromise their professional independence or their ability to express their own opinions’ (point 9 of the Declaration of responsibilities).
... 5.  It must first be established whether diplomats’ reports come under the heading of vital interests. The federal authorities and those who share their point of view argue that these reports are highly sensitive and comparable to the negotiations conducted by the Federal Council and the reports preceding such negotiations. These documents, they argue, merit greater protection than, for instance, expert reports or minutes of parliamentary committees. The Federal Department of Foreign Affairs and the Federal Council cannot form an accurate picture of international relations unless the ambassadors provide them with additional information, different from and more sensitive than that provided by the media. Diplomats also provide information they have obtained from confidential sources, behind the scenes or off the record. They need, for instance, to be able to express in plain language their views about violations of human rights and political relations in Iran, the involvement of leading Colombian politicians in drug trafficking and the true picture with regard to the balance of power and intrigue in the Kremlin. If, despite everything, reports of this kind are published, the ambassador concerned will almost automatically be declared persona non grata in the host country. If reports of this kind were to be published on a regular basis, ambassadors would no longer be able to report on everything that was going on. That would have an adverse impact on Swiss foreign policy, perhaps even paralysing it completely. And if everything were to be made public, Switzerland might just as well recall its diplomats and replace them with the media. In exercising their function as critic and watchdog, the media must always remain mindful of their responsibilities. This applies with particular force in the sphere of foreign policy, as the reports relating to foreign policy are also read abroad. If only for this reason, they are more sensitive than reports on domestic policy matters.
...
The Press Council acknowledges the importance of the principle that diplomatic correspondence should remain confidential. In the past, the Swiss media have observed that principle in substance and have not set out to expose the internal workings of diplomacy to public view. Disclosures in the foreign policy sphere have been the exception rather than the rule in Switzerland. Media bosses are clearly aware of the responsibilities inherent in the media’s role as critic and watchdog in this sphere.
At the same time, it should not be forgotten that disclosures by the media in the field of foreign policy are commonplace in other countries, particularly in the United States, but also in the United Kingdom and Israel. Clearly, other governments and diplomats have long had to contend with this risk of disclosures concerning foreign policy, and have learned to live with it. Whether they like it or not, the Swiss authorities must also learn to adjust to a situation in which foreign policy is as much the focus of media attention as domestic policy, and in which revelations may come not just from the Swiss media but also from foreign media. An approach which places confidentiality before the public interest in too rigid a manner is neither realistic nor legitimate, particularly since diplomatic reports are regularly forwarded to a large number of authorities.
There can be no doubt that the revelations in the Sonntags-Zeitung and the Tages‑Anzeiger were a source of embarrassment and problems for those responsible for Swiss foreign policy, but they did not restrict their room for manoeuvre substantially. Diplomatic reports are confidential by right, but when the conditions that allow confidential reports to be published are met, freedom of the press must take precedence (Opinion 2/94, Moser/Reimann parliamentary questions). 6.  The Press Council must now examine whether the content of Mr Jagmetti’s strategy paper is of such importance that it was appropriate to invoke the public interest, and whether it should have been published. In the view of Ueli Haldimann, editor of the Sonntags-Zeitung, the public interest lay in the fact that it was important to let people know how the Swiss ambassador in Washington perceived the complex issue of Holocaust victims’ assets and the way Switzerland was coming to terms with its past, and what kind of aggressive language he used. According to Haldimann, his newspaper did not publish any leaked information unless the public interest was at stake. Although there were more leaks now than previously, they were not damaging in principle, and were often the only remaining means of putting a stop to harmful conduct ...
From the Press Council’s standpoint, the next step is to assess the strategic importance of Mr Jagmetti’s paper. Mr Jagmetti set out in this document to make a perfectly reasonable analysis of the situation, making a number of constructive proposals. He explored two ‘extreme’ options – the first involving some kind of ‘deal’ and the second involving a ‘legal strategy’. The paper testifies to a fundamental concern to get at the truth, to find a generous financial solution and to protect Swiss interests and the country’s good relations with the United States. However, it could not escape the attention of even the most casual reader that Mr Jagmetti used very bellicose language and that he regarded his negotiating partners as adversaries who were not to be trusted and who might be amenable to some kind of deal. The language used betrays attitudes which are problematic even in an internal document, since attitudes are liable to be reflected also in negotiations and informal contacts. In that connection, Mr Jagmetti was to have been engaged in important discussions concerning the assets of Holocaust victims during the last six months of his tenure.
The Press Council is mindful of the fact that the degree of public interest of confidential information cannot be determined in a wholly objective manner, but depends on the ideological, cultural, economic and advertising context in which the medium operates. Nevertheless, in the case of Mr Jagmetti’s strategy paper, the public interest was clear, as the debate surrounding the assets of Holocaust victims and Switzerland’s role in the Second World War was highly topical in late 1996 and early 1997 and had an international dimension, and because the Swiss ambassador in Washington was to occupy a prominent position in the forthcoming discussions. Knowing what that ambassador thought and how he formulated his opinions was relevant, and not a trivial concern. Leaving aside the question of the public interest and the relevance of the ambassador’s remarks, the publication of this supposedly confidential paper was justified from an ethical viewpoint, since only as a result of its publication did it become clear that those in charge still had no clear idea, despite the creation of the task force, as to the question of Swiss responsibility and what steps should be taken. From the perspective of political transparency, publication of the confidential paper, despite the fact that it was more than a month old and that in the meantime there had been talk of setting up a fund for Holocaust victims, might have spurred the government on to engage in debate in order to overcome the problems, demonstrate leadership and devise convincing solutions. 7.  Finally, it is necessary to assess whether the information was made public in the most appropriate form. According to one school of thought, the media are in a position of power, since not only do they inform, they also suggest by the way in which they present the information how it is to be assessed. In the present case the Sonntags-Zeitung, it is argued, presented an internal analysis of foreign policy in truncated form and, by publishing it alongside comments from third parties who had not seen the original text, planted in people’s minds the idea that Ambassador Jagmetti had ‘insulted the Jews’. The newspaper, by accusing Mr Jagmetti of anti‑Semitism, started a rumour in an irresponsible manner. Reproducing the full text would not have placed Mr Jagmetti under the same kind of pressure and would not have forced him to resign. The manner in which the information was published, therefore, was a source of problems and consternation.
The opposing school of thought argues that it is vital to analyse the salient points of Mr Jagmetti’s remarks. According to the Sonntags-Zeitung, there was no question of accusing Ambassador Jagmetti of anti-Semitism. Nevertheless, the newspaper’s editors have acknowledged off the record that it would have been wiser to publish the strategy paper in full. They maintain that, on the day of publication, it would have been virtually impossible to add another page to the newspaper and that plans to publish the full text on the Internet were abandoned owing to technical problems.
The Press Council regards these arguments as spurious, and agrees with the criticism regarding the manner of publication. The Sonntags-Zeitung did not make sufficiently clear that Ambassador Jagmetti had outlined several options in his strategy paper, of which the ‘deal’ was just one. Nor did it make the timing of the events sufficiently clear, particularly since the document was already five weeks old and had reached the addressees before the interview given by the outgoing Swiss President on the programme 24 heures/Tribune de Genève. The newspaper unnecessarily made the affair appear shocking and scandalous and, by its use of the headline ‘Ambassador Jagmetti insults the Jews’, misled the reader and made it appear that the remarks had been made the previous day. It was incorrect to assert that Mr Jagmetti’s letter undermined the process which had begun in January, particularly since the document had been circulated beforehand and had not previously been in the public domain, and could not therefore adversely affect the talks with the country’s partners at home and abroad. When the Sonntags-Zeitung attempted to contact Mr Jagmetti on Friday 24 January in order to obtain a comment, and failed to reach him because he was in Florida, the newspaper’s editors should have considered whether it might not be wiser to delay publication by a week so as to be able to publish an interview with Carlo Jagmetti alongside the extracts from his paper. The fact that publication went ahead in the next issue in spite of everything can only have been prompted by the fear of competition, which on no account constitutes sufficient justification for immediate publication. Hence, by publishing the strategy paper in the way it did, the Sonntags-Zeitung omitted vital pieces of information, in breach of the Declaration on the rights and responsibilities of journalists (point 3 of the Declaration of responsibilities).
...
III.  Findings 1.  Freedom of the press is too fundamental a right to be made subservient as a matter of principle to the interests of the State. The role of critic and watchdog played by the media requires them to make information public where the public interest is at stake, whether the source of information is freely accessible or confidential. 2.  As to the publication of confidential information, the pros and cons must be weighed up carefully, with an eye to whether interests which merit protection are liable to be damaged in the process. 3.  Internal reports by diplomats are confidential by right, but do not necessarily merit a high degree of protection in all cases. The media’s role as critic and watchdog also extends to foreign policy, with the result that those in charge in the media may publish a diplomatic report if they consider its content to be in the public interest. 4.  In the case of Mr Jagmetti, the interest to the public of his strategy paper should be acknowledged, as should the fact that its publication was legitimate on account of the importance of the public debate on the assets of Holocaust victims, the prominent position occupied by the Swiss ambassador in Washington and the content of the document. 5.  In this case the Sonntags-Zeitung, in irresponsible fashion, made Mr Jagmetti’s views appear shocking and scandalous by printing the strategy paper in truncated form and failing to make the timing of the events sufficiently clear. The newspaper therefore acted in breach of the Declaration on the rights and responsibilities of journalists (point 3 of the Declaration of responsibilities). The Tages-Anzeiger and the Nouveau Quotidien, on the other hand, placed the affair in its proper context following the revelations by reproducing the document in its near‑entirety.”
25.  Following publication of the articles, the applicant was made the subject of an investigation by the Zürich cantonal authorities. By a decision of 6 March 1998, the Federal Public Prosecutor’s Office ordered the discontinuation of the investigation into a breach of official secrecy (Verletzung des Amtsgeheimnisses) within the meaning of Article 320 of the Swiss Criminal Code. It remitted the case in respect of the charge of publication of official deliberations within the meaning of Article 293 of the Criminal Code to the prosecuting authorities of the Canton of Zürich.
26.  On 5 November 1998 the Zürich District Office (Statthalteramt des Bezirkes Zürich) fined the applicant 4,000 Swiss francs (CHF) (approximately 2,382 euros (EUR) at the current exchange rate) for contravening Article 293 § 1 of the Swiss Criminal Code (see paragraph 35 below) by publishing the articles entitled “Ambassador Jagmetti insults the Jews” and “The ambassador in bathrobe and climbing boots puts his foot in it”.
27.  On 22 January 1999, following an application by the applicant to have the decision set aside, the Zürich District Court (Bezirksgericht) convicted him of an offence under Article 293 § 1 of the Swiss Criminal Code, but reduced the fine to CHF 800 (approximately EUR 476 at the current exchange rate).
28.  The relevant passages of the District Court judgment read as follows (unofficial translation):
“5.2.2  According to the case-law of the Federal Court, the offence defined in Article 293 of the Criminal Code is based on a formal notion of secrecy whereby the confidential nature of a document, a set of talks or an investigation stems not from its content but from it being classified as such by the competent body. In accordance with this approach by the Federal Court, the strategy paper in question, which was marked ‘(classified) confidential’ (Document 2/2), amounts to a secret in the formal sense, and as such attracts the protection of Article 293 of the Criminal Code.
When it comes to interpreting Article 293 of the Criminal Code, freedom of expression and freedom of the press (Article 10 of the European Convention on Human Rights and Article 55 of the Federal Constitution) should in principle be taken into consideration in the appellant’s favour. With the revision of the Criminal Code of 10 October 1997, which made the publication of secrets of minor importance an extenuating circumstance (Article 293 § 3), the legislature added a substantive component to the notion of secrecy under Article 293. But even assuming that for these reasons – and contrary to the case-law of the Federal Court – the court were to base its decision on a purely substantive notion of secrecy, the outcome would not be favourable to the appellant.
The views expressed by Ambassador Jagmetti in the strategy paper were not in the public domain. This, moreover, is also apparent from the fact that the information conveyed and the way it was analysed provided the basis for ‘sensationalist’ articles by the appellant. Whether or not Ambassador Jagmetti might have been willing to divulge the content of the strategy paper in an interview is of little relevance here. However, there is every reason to doubt it, the more so given the limited number of persons to whom the document was sent. Furthermore, contrary to the appellant’s claims, the content of the strategy paper was far from unremarkable. The document contained an assessment of the delicate foreign policy situation in which Switzerland found itself in December 1997 on account of the unclaimed assets, in particular vis‑à‑vis the United States. It also proposed a variety of strategies aimed at helping the country get out of its predicament. Documents setting out often carefully worded evaluations and assessments are an essential part of the formation of opinions and decision-making at embassy level, a process during which strongly held and often diverging opinions are exchanged and discussed internally until agreement is reached on a particular position. The protection which Article 293 of the Criminal Code is intended to provide also applies to the formation of opinions in as free a manner as possible and without undue outside influence (BGE (Federal Court Reports) 107 IV 188). In that regard, the document in question was aimed at helping the head of the task force to form an opinion and hence at influencing the course of events and the country’s handling of the issue of the unclaimed assets. By its very nature, the publication of internal documents of this kind, which are designed to help form opinions, can have devastating consequences for the negotiations to be conducted. Consequently, given its explosive content and the fact that it was unknown to the public, the document in question was also secret in the substantive sense. It is thus fair to say that the question whether the broad formal notion of secrecy adopted by the Federal Court takes precedence over Article 10 of the European Convention on Human Rights remains open ... 6.  To justify his actions, the appellant claims to have been defending legitimate interests. According to the Federal Court, this extra-legal justification may be relied on ‘if the act in question constitutes a necessary and reasonable means of achieving a legitimate aim, is the sole possible course of action and is manifestly of less importance than the interests which the perpetrator is seeking to defend’ (BGE 120 IV 213). The appellant argues that the editors of the Sonntags-Zeitung assessed the situation before arriving at the conclusion that the public interest carried greater weight. They took the view that the public was entitled to be informed when leading diplomats used language which was in glaring contradiction with Switzerland’s official position (Document 2/5, p. 2). The tone employed by the ambassador was so inappropriate, they argued, that publication was necessary (Document 2/7). Ambassador Jagmetti, according to the editors, was not the right person to be conducting the negotiations with Senator D’Amato and the Jewish organisations, as he lacked the finesse needed to deal with this important issue (Document 17, p. 13). By publishing the confidential strategy paper, therefore, the appellant was in part attempting, as it were, to sideline from the negotiations a leading diplomat whose style he disliked. It must be said that, even if it was genuine, the indignation expressed by the appellant with regard to the tone of the document seems somewhat naïve. While a section of the public may well have wished to be informed about internal documents of this kind, this has little to do with legitimate interests. Moreover, the appellant undoubtedly undermined the climate of discretion which is of vital importance in the sphere of diplomatic relations, thereby weakening Switzerland’s position in the negotiations or at least compromising it substantially. In assessing the public interest relied on by the appellant in the light of the strict requirements laid down by the Federal Court with regard to the extra-legal justification of defence of legitimate interests, it is clear, firstly, that the means employed by the Sonntags‑Zeitung, consisting in the impugned publication of secret official documents, were neither necessary nor reasonable and, secondly, that the interests which were damaged as a result were not ‘manifestly’ of less importance. In addition, the public debate on unclaimed assets which the appellant wished to see could perfectly well have been conducted without infringing Article 293 of the Criminal Code. The defence of legitimate interests cannot therefore be relied on as justification ... 8.  Under Article 293 § 3 of the Criminal Code, the publication of secrets of minor importance amounts to an extenuating circumstance. As indicated above, however, the secret divulged in the present case was not of minor importance. The publishing of a strategy paper which was vital to the formation of opinions within the Federal Department of Foreign Affairs and the Federal Council, while it may not have actually weakened Switzerland’s position vis-à-vis the outside world and in particular in the negotiations, at least temporarily compromised it. It was important to preserve the confidentiality of the document not just because it was classified as ‘confidential’. The implications of the subject under discussion for Swiss foreign policy also called for greater discretion in dealing with the strategy paper. There are therefore no extenuating circumstances under Article 293 § 3 of the Criminal Code in relation to the facts constituting the offence.
...
The offence committed cannot now be regarded as minor, as the secrets which the appellant made public are not of secondary importance. In publishing the strategy paper, the appellant unthinkingly compromised Switzerland’s tactical stance in the negotiations. Nevertheless, the offence is not a very serious one, as the appellant did not divulge an actual State secret whose publication could have undermined the country’s very foundations. Nor should too much be made of the fault committed by the appellant, in so far as he committed his actions – with the backing of the newspaper’s editor and its legal department – in a legitimate attempt, among other things, to start an open debate on all aspects of the unclaimed assets issue. A fine of CHF 800 is therefore appropriate ...”
29.  The applicant lodged an appeal on grounds of nullity (Nichtigkeitsbeschwerde), which was dismissed by the Court of Appeal (Obergericht) of the Canton of Zürich on 25 May 2000.
30.  The applicant lodged an appeal on grounds of nullity and a public‑law appeal (staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht). He argued that a journalist could be convicted of an offence under Article 293 of the Swiss Criminal Code only in exceptional circumstances, namely if the secret published was of unusual importance and publishing it undermined the country’s very foundations. He referred to the public interest in being made aware of the ambassador’s remarks and the role of journalists as watchdogs in a democratic society.
31.  The Federal Court dismissed the applicant’s appeals in two judgments dated 5 December 2000 (served on 9 January 2001) in which it upheld the decisions of the lower courts.
32.  In examining the appeal on grounds of nullity, the Federal Court firstly outlined some considerations regarding Article 293 of the Criminal Code (unofficial translation):
“2.(a)  According to the case-law and most commentators, Article 293 of the Criminal Code is aimed at protecting secrets in the formal sense. The sole determining factor is whether the documents, investigations or deliberations are secret by virtue either of the law or of a decision taken by the authority concerned. Whether they have been classified as ‘secret’ or simply ‘confidential’ is of little relevance; it is sufficient for it to be clear that the classification was designed to prevent their publication ... This formal notion of secrecy differs from the substantive notion, to which most of the Articles of the Criminal Code on the disclosure of secret information relate, for instance Article 267 (diplomatic treason) or Article 320 (breach of official secrecy). In the substantive sense, a fact is secret if it is accessible to only a limited number of persons, if the authority in question wishes to keep it secret and if that wish is justified by interests which merit protection ...
Many commentators have argued in favour of the wholesale repeal of Article 293, saying that steps should at least be taken to ensure that publication of a secret in the substantive sense is punishable only if the secret is of major importance ...
(b)  As part of the revision of the criminal and procedural provisions relating to the media, the Federal Council proposed repealing Article 293 of the Criminal Code without replacing it with another provision. In its communication (BBl (Federal Gazette) 1996 IV 525 et seq.), the Federal Council argued in particular that it was unfair to punish the journalist who had published the confidential information, while the official or representative of the authority concerned who had originally made publication possible generally escaped punishment because his or her identity could not be established ... According to the Federal Council, Article 293 of the Criminal Code, which protected secrets in the formal sense ..., placed excessive restrictions on the freedom of action of the media. In its view, the ‘second use’ of a disclosed secret (by someone working in the media, for instance) was less serious in terms of criminal potential and unlawfulness than the initial disclosure of the secret by its holder. In addition, the journalist was by no means always aware that the information he had received was obtained as the result of betrayal of a secret. The actions of the ‘second user’ might be assessed differently in cases where the information disclosed was a genuine State or military secret. However, independently of Article 293 of the Criminal Code, the legislation in force in any case made provision, in relation to diplomatic treason (Article 267 of the Criminal Code) and breach of military secrecy (Article 329 of the Criminal Code), for two layers of protection in such cases, one against disclosure by the holder of the secret and the other against disclosure by the ‘second user’. According to the Federal Council, the proposed repeal of Article 293 of the Criminal Code would not therefore undermine the protection of secrecy under criminal law in important spheres. The objection that Article 293 also protected individual interests was at best indirectly relevant, as individuals’ private and personal lives were protected first and foremost by Articles 179-79 septies of the Criminal Code and the provisions of the Civil Code concerning the protection of personality rights ...
In the federal authorities, those in favour of the wholesale repeal of Article 293 of the Criminal Code have also argued that the provision in question is rarely applied and is not effective. They contend that it is unfair, in particular, because it penalises only the journalist, who is the ‘second user’, whereas the identity of the initial perpetrator of the offence, namely the official or representative of the authority concerned, remains unknown ... and he or she cannot therefore be called to account for a breach of official secrecy, for instance. Even if Article 293 were simply repealed, they argue, the disclosure by a journalist of genuinely important secrets would still be punishable, for instance under Article 267 of the Criminal Code (diplomatic treason) or Article 329 (breach of military secrecy). Opponents of the repeal of Article 293 have argued ... that the provision is more necessary than ever, as the disclosure of secret or confidential information can have serious consequences ...”
33.  The Federal Court then turned to the circumstances of the present case:
“8.  The ‘publication of secret official deliberations’ (offence referred to in Article 293 of the Criminal Code) must still be considered to be based on a formal notion of secrecy, in line with the case-law of the Federal Court. The addition of a third paragraph to Article 293 has done nothing to change that. However, in view of the fact that it is now open to the criminal courts not to impose any penalty, they must determine in advance whether the classification as ‘secret’ can be justified in the light of the purpose and content of the disclosed documents. That is the case here.
The extracts from the confidential document published by the appellant were, moreover, also secret in the substantive sense. The appellant rightly refrains from arguing that the extracts in question were of minor importance within the meaning of Article 293 § 3 of the Criminal Code. In requesting that the application of Article 293 be confined to cases in which the secrets disclosed are of major importance and their disclosure threatens the very foundations of the State, the appellant is seeking a decision which goes well beyond any interpretation of Article 293 (in line with the Constitution and the case-law of the European Court of Human Rights), which the Federal Court is obliged to apply pursuant to Article 191 of the new Federal Constitution. The same is true of the argument that persons working in the media can be convicted of publishing secret official deliberations under Article 293 of the Criminal Code only if the interest of the State in preserving the confidentiality of the disclosed information outweighs the public interest in receiving the information. This comparison of the interests at stake has no bearing on the essential elements of the offence, although it may possibly have a bearing on the extra-legal justification of protection of legitimate interests. In any event, the circumstances of the present case are not such as to allow the protection of legitimate interests to be relied on as justification for publishing secret official deliberations. 9.  This conclusion renders a comparison of the interests at stake in the present case redundant. It is therefore not necessary to respond to the appellant’s criticism of the way in which the cantonal authorities balanced those interests.
For the sake of completeness, however, it should nevertheless be pointed out that, for the reasons set forth by the federal authorities, the interest in maintaining the confidentiality of the strategy paper in question carried greater weight than the public interest in being apprised of the extracts published in the newspaper. In order to avoid repetition, the court would refer here to the considerations set forth in the impugned judgment and in the first-instance judgment. It was in the interests not only of the ambassador and the Federal Council, but also of the country, to preserve the confidential nature of the strategy paper. The publication of isolated extracts was liable to interfere with the formation of opinions and the decision-making process within the State bodies in Switzerland, and above all to further complicate the already difficult negotiations being conducted at international level; this was not in the country’s interest. On the other hand, the passing interest in the extracts published out of context in the newspaper which the eye-catching headline aroused among sensation-seeking members of the public is relatively insignificant in legal terms. This is all the more true since the ‘tone’ criticised by the appellant, used in an internal document written in a specific context (and the content of which was, according to the article, an unremarkable assessment of the situation), did not in any event permit the reader to draw clear and indisputable conclusions as to the ‘mentality’ of the ambassador, still less as to his ability to perform the task assigned to him ...”
34.  In its judgment following the applicant’s public-law appeal, the Federal Court found as follows (unofficial translation):
“3.  In his public-law appeal, the appellant requests in particular that the principle of equality in the breach of the law [Gleichbehandlung im Unrecht] be applied to him and raises, among other things, a complaint concerning a violation of the principle of lawfulness ...
(b)  There is no need to explore in detail here the reasons why the prosecuting authorities decided not to prosecute the other journalists mentioned by the appellant for publication of secret official deliberations on account of the articles which they wrote, or to consider whether those reasons were sufficient. Even if the latter question were to be answered in the negative, it would not benefit the appellant in any way.
It is clear from the explanations on this point set forth in the impugned judgment (pp. 5 et seq., Considerations point 4) and in the first-instance judgment (p. 3, Considerations point 4) that the exceptional circumstances in which the Federal Court’s case-law recognises the right to equality in the breach of the law do not apply. The approach taken by the prosecuting authorities in this case does not in itself constitute a ‘consistent’ (possibly unlawful) practice, either in the sense that, in the absence of specific substantive grounds, journalists are only very exceptionally prosecuted for publication of secret official deliberations, not systematically, or in the sense that, where extracts from the same confidential document are published by several journalists in different articles, the journalist who for whatever reason – whether on the basis of the way the article was written or of the extracts selected – appears to be the most culpable is consistently singled out for prosecution. Moreover, there is nothing to suggest that either (possibly unlawful) practice will be adopted in the future ...”
35.  Article 293 of the Swiss Criminal Code, entitled “Publication of secret official deliberations”, reads as follows (unofficial translation):
“1.  Anyone who, without being entitled to do so, makes public all or part of the documents, investigations or deliberations of any authority which are secret by law or by virtue of a decision taken by such an authority acting within its powers shall be punished with imprisonment or a fine.
36.  In a judgment of 27 November 1981 (BGE 107 IV 185), the Federal Court specified that the notion of secrecy on which Article 293 of the Criminal Code was based was a purely formal one.
37.  The Swiss legislature recently adopted the Federal Administrative Transparency Act of 17 December 2004, which came into force on 1 July 2006 (Compendium of Federal Law 152.3). The relevant provisions of the Act, which is aimed at improving access to official documents, read as follows (unofficial translation):
“Part 1: General provisions
Section 1 – Purpose and object
The present Act is aimed at fostering transparency as to the tasks, organisation and activities of the authorities. To that end, it shall contribute to informing the public by providing access to official documents.
...
Part 2: Right of access to official documents
Section 6 – Principle of transparency 2.  The person concerned may consult the official documents in situ or request a copy of them, without prejudice to the copyright legislation. 3.  If the official documents have already been published by the Confederation in paper or electronic form, the conditions set out in paragraphs 1 and 2 shall be deemed to have been fulfilled.
Section 7 – Exceptions 1.  The right of access shall be restricted, deferred or refused where access to an official document:
(a)  is liable to interfere significantly with the process of free formation of opinions and intentions within an authority governed by the present Act, another legislative or administrative body or a judicial authority;
(b)  interferes with the implementation of specific measures taken by an authority in accordance with its objectives;
(c)  is liable to jeopardise the country’s internal or external security;
(d)  is liable to jeopardise Swiss interests in the sphere of foreign policy and international relations;
... 2.  The right of access shall be restricted, deferred or refused if access to an official document might interfere with the private sphere of a third party, unless the public interest in transparency is judged on an exceptional basis to carry greater weight.”
38.  The Order of 10 December 1990 on the classification and processing of civil-authority information (Compendium of Federal Law 172.015), in force at the material time, defines the different levels of classification (unofficial translation):
“Part 1: General provisions
Section 1 – Object
The present Order lays down the provisions on maintaining secrecy applicable to civil-authority information (hereinafter ‘information’) which, in the higher interests of the State, must not be passed on temporarily to other persons or be disclosed; it does so by means of instructions on the manner in which such information is to be classified and processed.
...
Part 2: Classification
Section 5 – Categories of classification
The body which issues the information (hereinafter ‘the issuing body’) shall classify it on the basis of the level of protection it requires. There shall be only two categories of classification: ‘secret’ and ‘confidential’.
Section 6 – ‘Secret’ information
The following information is to be classified as ‘secret’:
(a)  information which, if it became known to unauthorised persons, could seriously damage Switzerland’s external relations or jeopardise the implementation of measures designed to protect the country’s internal and external security and aimed, for instance, at maintaining government activity during an emergency or ensuring vital supplies;
(b)  information to which only a very small number of persons have access.
Section 7 – ‘Confidential’ information 1.  Information within the meaning of section 6 which is of less significance and to which, normally speaking, a greater number of people have access shall be classified as ‘confidential’. 2.  A ‘confidential’ classification shall also be given to information which, if it became known to unauthorised persons, might enable them to:
(a)  interfere with the activities of the government;
(b)  frustrate the implementation of important measures by the State;
(c)  betray manufacturing secrets or important commercial secrets;
(d)  frustrate the course of criminal proceedings;
(e)  undermine the security of major infrastructure.
Section 8 – Persons authorised to classify information
Heads of department, the Federal Chancellor, secretaries general, office directors and their deputies shall be responsible for classifying information and amending or removing classification. They may delegate their powers in certain cases.”
This Order was subsequently replaced by the Order of 4 July 2007 on the protection of federal information (Compendium of Federal Law 510.411), which came into force on 1 August 2007.
39.  On 19 December 2006 the four special representatives on freedom of expression (Mr Ambeyi Ligabo, United Nations Special Rapporteur on Freedom of Opinion and Expression; Mr Miklos Haraszti, OSCE Representative on Freedom of the Media; Mr Ignacio J. Alvarez, Organisation of American States (OAS) Special Rapporteur on Freedom of Expression; and Ms Faith Pansy Tlakula, African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression) adopted a joint declaration. The following is an extract from the declaration:
“Journalists should not be held liable for publishing classified or confidential information where they have not themselves committed a wrong in obtaining it. It is up to public authorities to protect the legitimately confidential information they hold.”
40.  On 19 April 2007 the Parliamentary Assembly of the Council of Europe adopted a resolution on espionage and divulging State secrets. The paragraphs of relevance to the present case read as follows:
“Fair-trial issues in criminal cases concerning espionage or divulging State secrets (Resolution 1551 (2007)) 1.  The Parliamentary Assembly finds that the State’s legitimate interest in protecting official secrets must not become a pretext to unduly restrict the freedom of expression and of information, international scientific cooperation and the work of lawyers and other defenders of human rights. 2.  It recalls the importance of freedom of expression and of information in a democratic society, in which it must be possible to freely expose corruption, human rights violations, environmental destruction and other abuses of authority.
... 5.  The Assembly notes that legislation on official secrecy in many Council of Europe member States is rather vague or otherwise overly broad in that it could be construed in such a way as to cover a wide range of legitimate activities of journalists, scientists, lawyers or other human rights defenders. 6.  ... For its part, the European Court of Human Rights found ‘disproportionate’ an injunction against the publication in the United Kingdom of newspaper articles reporting on the contents of a book (Spycatcher) that allegedly contained secret information, as the book was readily available abroad.
... 9.  It calls on the judicial authorities of all countries concerned and on the European Court of Human Rights to find an appropriate balance between the State interest in preserving official secrecy on the one hand, and freedom of expression and of the free flow of information on scientific matters, and society’s interest in exposing abuses of power on the other hand. 10.  The Assembly notes that criminal trials for breaches of State secrecy are particularly sensitive and prone to abuse for political purposes. It therefore considers the following principles as vital for all those concerned in order to ensure fairness in such trials: 10.1.  information that is already in the public domain cannot be considered as a State secret, and divulging such information cannot be punished as espionage, even if the person concerned collects, sums up, analyses or comments on such information. The same applies to participation in international scientific cooperation, and to the exposure of corruption, human rights violations, environmental destruction or other abuses of public authority (whistle-blowing); 10.2.  legislation on official secrecy, including lists of secret items serving as a basis for criminal prosecution must be clear and, above all, public. Secret decrees establishing criminal liability cannot be considered compatible with the Council of Europe’s legal standards and should be abolished in all member States;
...”
41.  As regards the classification of Council of Europe documents, Committee of Ministers Resolution Res(2001)6 of 12 June 2001 on access to Council of Europe documents articulates a clear principle: that of publishing information, with classification only in exceptional cases. Accordingly, it defines four categories of classification: (1) documents not subject to any particular classification, which are public; (2) documents classified as “restricted”; (3) documents classified as “confidential”; and (4) documents classified as “secret”. No definition exists which would enable documents to be classified according to their content. The principle of transparency promoted by Resolution Res(2001)6 has ultimately resulted in publication becoming the norm. It seems that, since its adoption, no Committee of Ministers document has been classified as “secret”.
42.  The United Nations Human Rights Committee, in concluding observations adopted in 2001, criticised the implementation of the Official Secrets Act by the United Kingdom authorities and its impact on the activities of journalists (Concluding Observations, doc. CCPR/CO/73/UK of 6 December 2001):
“... 21.  The Committee is concerned that powers under the Official Secrets Act 1989 have been exercised to frustrate former employees of the Crown from bringing into the public domain issues of genuine public concern, and to prevent journalists from publishing such matters.
The State Party should ensure that its powers to protect information genuinely related to matters of national security are narrowly utilised, and limited to instances where it has been shown to be necessary to suppress release of the information.”
43.  In the Claude Reyes et al. v. Chile case before the Inter-American Court of Human Rights (19 September 2006, Series C no. 151), the Inter-American Commission on Human Rights submitted as follows:
“58.  ... The disclosure of State-held information should play a very important role in a democratic society, because it enables civil society to control the actions of the government to which it has entrusted the protection of its interests. ...”
The Inter-American Court of Human Rights found as follows:
“84.  ... In several resolutions, the OAS General Assembly has considered that access to public information is an essential requisite for the exercise of democracy, greater transparency and responsible public administration and that, in a representative and participative democratic system, the citizenry exercises its constitutional rights through a broad freedom of expression and free access to information.
... 86.  In this regard, the State’s actions should be governed by the principles of disclosure and transparency in public administration that enable all persons subject to its jurisdiction to exercise the democratic control of those actions, and so that they can question, investigate and consider whether public functions are being performed adequately. ... 87.  Democratic control by society, through public opinion, fosters transparency in State activities and promotes the accountability of State officials in relation to their public activities. ...”
44.  Mr Christos Pourgourides, rapporteur on Resolution 1551 (2007) of 19 April 2007 (see paragraph 40 above), carried out a comparative study of legislation concerning State secrets in the member States of the Council of Europe. In his report he stressed that the disclosure of certain types of classified information appeared to be punishable in all countries, but with a wide variety of approaches being adopted. The report also made reference to the methods of classification used. Below are some extracts from the report:
“57.  Generally speaking, one can identify three basic approaches: the first consists in a short and general definition of the notion of official or State secret (or equivalent), presumably to be filled in on a case-by-case basis. The second involves lengthy and more detailed lists of specific types of classified information. The third approach combines the other two by defining general areas in which information may be classified as secret, and then relying upon subsequent administrative or ministerial decrees to fill in more specifically which types of information are in fact to be considered as secret.
... 59.  There are, of course, many other differences among the States’ legislation that I need not dwell on. Some States (Austria and Germany, for example) distinguish between ‘official secrets’ and ‘State secrets’, whose violation is sanctioned more heavily. Most States also distinguish different degrees of secrecy (classified or restricted, secret, top secret, etc.). There are also differences in the harshness of penalties foreseen, which may be limited to fines in less serious cases. Some statutes distinguish between duties of civil servants and those of ordinary citizens. Some expressly penalise disclosure through negligence, others require criminal intent. For our specific purpose, these differences are immaterial.
... 68.  To sum up, each of these legislative approaches allows for reasonable responses to the difficult task of specifying in advance the types of information that the State has a legitimate interest in protecting, while nonetheless respecting the freedom of information and the need for legal security. But any administrative or ministerial decrees giving content to more generally worded statutes must at the very least be publicly accessible. Also, in the absence of a vigilant and truly independent judiciary, and of independent media that are ready to expose any abuses of power, all legislative schemes reviewed are liable to abuse.”